David Williams

We’re now into April, which means that the government’s new “age verification” system is in place, all with the aim of preventing under age people from accessing pornographic content.

Section 14 of the Digital Economy Act 2017 creates new requirements for service providers to prevent access by under 18s, which means it’s no longer as simple as “stumbling” across a site by typing something into Google.

Section 14 defines “pornographic material” as anything which has an “R18” films certificate, anything which should have an R18 certificate and:-

Any other material if it is reasonable to assume from its nature –

That it was produced solely or principally for the purposes of sexual arousal, and

That any classification certificate issued in respect of a video work including it would be an 18 certificate.

The section applies to video, film, with or without sound, still images, with or without sound, or just sound.

The regulator in this case is the British Board of Film Classification.

In practise, this means that if you want to view X rated websites you are going to have to verify your age.

There’ll be different ways of doing this, from acquiring a “porn pass” from a newsagent or ISPs requiring a scan of a passport or driving license or directing you to a page which requires credit card details.

And they’re not messing around – enforcement is by civil court proceedings and I understand the government has set aside a fighting fund of £10 million to deal with defences.

If you are accessing this type of material be mindful that in 2012, for example, YouPorn had 1,327,567 compromised data accounts.

How do I feel about this personally? I don’t see how all of this is going to work.

I understand children are experienced at using Virtual Private Network accounts, which can hide where you are in the world.

Can we regulate what connections the websites will accept?

Will this push children towards “VPNs” and the “dark web” and have the opposite effect?

How will the ISPs cope with European GDPR? Lots of questions, and no clear answers.

We’ll keep an eye out for how this progresses and will report on it when we’ve got more information.

There’s a fairly unpleasant sounding term that’s doing the rounds in the news a lot recently – “revenge porn”.

What exactly is it?

Well, Section 33 of the Criminal Justice & Courts Act 2015 created this as an offence, and – in short – it’s the disclosure of a private sexual photograph or film without the consent of the person in the image with the intention of causing them distress.

Subsection 3 states that a photograph or film is sexual if:-

It shows all part of their genitals or pubic area; or

It shows something that a reasonable person would consider to be sexual because of its nature; or

Its content, taken as a whole, is such that a reasonable person would consider it to be sexual.

Disclosing such content is “by any means…”

I.e. not just on social media, or on the internet.

Any act that sees you showing a private sexual photograph or film of your ex-partner to anyone is an offence, if you intend to distress them by doing it.

That legal caveat might sound strange, but legally, it’s important: the intention to cause distress cannot be automatically inferred, and the prosecution must show that the publisher intended to cause distress.

In December 2015 Brendan McCarthy – also known as Dr Evil – was arrested.

After a preliminary ruling in the Court of Appeal, on the 12 February 2019, Mr. McCarthy admitted three counts of wounding with intent to cause grievous bodily harm – even though his victims (or “customers” if you wish) had consented to the procedures.

The charges put to Mr. McCarthy were under Sections 18 of the Offences against the Person Act of 1861 which reads:-

…………..wounding with intent to do grievous bodily harm.

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, . . . with intent, . . . to do some . . .grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life.

The charges related to:

a Mr Lott who had his left ear removed on the 23 July 2015;

an unknown female had her tongue split with a scalpel on the 23 July 2012;

another victim who had their nipples cut out.

All of them signed a consent agreeing to Mr. McCarthy performing the procedure.

But crucially, the Act does not mention consent.

The leading case in this area is R v Brown 1994 in the House of Lords (now called the Supreme Court).

In that case a group of sado-masochistic individuals appealed from their conviction under the act following prosecution for committing acts of violence against each other, including genital torture. The passive partner (or victim) in each case consented to the acts being committed and suffered no permanent injury.

Here’s how Lord Templeman responded to the argument that every person has a right to deal with their body as they choose:

“I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Where the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.”

He also noted:

The victims were youths, some of whom were introduced to sado-masochism before they attained the age of 21. The evidence disclosed that drink and drugs were important to obtain consent and increased enthusiasm.

Lord Jauncey added:

It was accepted by all the Appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial.

Lord Lowry:- …

Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or “grievous bodily harm”).

In the present case, the Court followed R v Brown and observed:

What the Defendant undertook for reward in this case was a series of medical procedures performed for no medical reason.

and

The fact that the desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness, but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable.

and

In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury.

To my mind where to draw the line is a very difficult question.

However, most people of goodwill would think that seriously invasive medical procedures should be regulated to screen out the mentally ill and so that they are only carried out by trained medical practitioners.

Given that whatever happens is likely to have an impact on you, I thought it’d be sensible to explain the state of play.

So what options are available to Parliament before April 12th?

Decide to extend the Article 50;

Revoke the Article 50 Notice;

Conclude the Withdrawal Treaty;

Exit without the Withdrawal Treaty.

When the UK leaves the EU, Article 50 states that the EU Treaties will cease to apply to the UK.

If the Withdrawal Treaty is concluded it is likely that:

A post exit transition period will run from the Exit Day until the 31 December 2020;

This transition period could be extended for up to 1 or up to 2 years by decision of the joint committee (this joint committee is established by Article 164 of the present Withdrawal Treaty and includes UK and EU representatives);

Most EU law (including amended and supplemental law) will continue to apply to the UK during this period;

The future relationship will be formally negotiated based on the terms set out in the political declaration (an appendix to the Withdrawal Treaty which gives a framework for the future relationship that UK and EU negotiators aim to make before withdrawal);

If an agreement on the future relationship is not agreed at the end of the transition period (or any extension of it) the withdrawal agreement backstop would come into effect.

What is the backstop?

The backstop establishes a single UK –EU customs territory, aligning Northern Ireland to EU customs and single market rules, allegedly required to avoid a hard border.

We’re back with another “Behind the news” special, and this one follows in the wake of the Philip Green saga that I emailed you about the other day.

As you’ll probably have seen, there’s something of a bandwagon that a number of MPs have jumped on, claiming we need some new legislation to prevent Non-Disclosure Agreements preventing reports to police.

But, to be frank, these MPs would be better off studying the law a little harder – they’d soon realise that their point makes little sense.

Let’s take a look “Perverting the Course of Justice”:

This is an indictable (serious) offence which carries a serious risk of imprisonment, even on a first time conviction.

Common examples of the perverting the course of justice are:

Making false allegations;

Fabricating evidence;

Concealing evidence;

Obstructing the police;

Perjury;

Interfering with the jury.

You might think that a number of these examples could only be valid in the context of a police investigation, but in the case of R v Rafique in 1993, the Court held that an intention to pervert the course of justice could happen before the criminal conduct was investigated or even discovered.

Concealing evidence is a common example of the offence, and this is often done by the destruction or encryption of hard drives, shredding or burning documents, or hiding things in order to conceal an offence.

What’s this got to do with NDAs?

In the 1973 case of R v Panayiotou (P), the accused had used a third party to offer money to a woman who alleged she had been raped by P.

P made an offer of money for her silence and was convicted of perverting the course of justice for trying to bribe the woman to withdraw the allegation she had made.

It is therefore clear that if you pay money to somebody to withhold details of a criminal offence from the authorities that amounts to perverting the course of justice.

In my experience most of the confidentiality clauses in employment settlement agreements contain an exclusion such as:

“The parties agree to keep the terms of this agreement and circumstances concerning the termination of your employment confidential, except where such disclosure is to HMRC, any regulatory or law enforcement body or supervisory authority ….”

The police and the CPS are clearly a law enforcement body.

A clause such as the above clearly states that disclosure may be made to the police or the CPS.

No solicitor I know would be daft enough to try and insert a clause in an agreement that for the payment of money, the conduct of the employer should be hidden from the police, and indeed, any solicitor including such a clause would fall foul of SRA rules.

And even if an NDA did not contain the words underlined above, can you imagine the Court allowing a claim to proceed if an ex-employee made a complaint to the police?

Imagine a Complainant (C) has been sexually assaulted at work.

They bring a grievance and decide to leave that place of work and a compromise agreement, including a confidentiality clause, is put in place with the Employer (E).

The words underlined above are not included.

After receiving the compensation payment, the Complainant then reports the matter to the police.

E alleges a breach of the compromise agreement by bringing a claim against C in Court.

E tells the court it’s not trying to stifle any or impede any prosecution, it just wants its money back because the agreement has been breached.

If the action is allowed to continue – i.e. it is not struck out for being an abuse of process – then it is very likely the Court is going to hold any contractual clause which purports to prevent reports to the police void – and probably report the employer and its solicitors to the Attorney General for attempting to pervert the course of justice.

In my view, if Sir Phillip Green’s accusers go “public” with their claims (perhaps in circumstances where they feel they can increase the amount of money that they have already received by obtaining payments from newspapers) that would probably be a breach of “NDAs” they had entered into.

However, if they reported the matter to the police, that would not be a breach of an NDA and anyone who brought a claim in Court saying that it was would probably be implicitly confessing to attempting to pervert the course of justice.

(1) In this section a reference to a person’s “citizenship status” is a reference to his status as—

(a) a British citizen,

(b) a British overseas territories citizen,

(c )a British Overseas citizen,

(d) a British National (Overseas),

(e) a British protected person, or

(f) a British subject.

[F117(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.]

………………………….

(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.

[F118(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—

the citizenship status results from the person’s naturalisation,

the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and

the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.]

To my mind the “and” at the end of Section 40 (4A)(b) is conjunctive, which means the Secretary of State can only deprive under Section (b) if (c) applies, i.e. she has a right to acquire Bangladeshi citizenship.

So, she doesn’t have to be a Bangladeshi citizen – she just has to be able to become one.

We will keep following this and bring you the true facts from the court!